FEDERAL COURT OF AUSTRALIA Phosphate Resources Ltd v The Commonwealth [2003] FCA 447 ADMINISTRATIVE LAW – statutory interpretation – validity of administrative determination pursuant to Ordinance - declaratory relief – claim for extensive discovery – dependent upon constructional issue – constructional issue determined – claim for declaratory relief relevant to constructional issue dismissed – motion for discovery dismissed – Christmas Island Territory – Administrator – determination of fees for supply of electricity – whether determination complied with necessary condition in Utilities and Services Ordinance 1996 - whether fees charged bore "reasonable relationship to the cost of supplying utilities" – whether reasonable relationship depends upon mode of calculation or relationship to costs – whether necessary to determine actual costs – whether fees charged at less than average costs bear reasonable relationship to costs Utilities and Services Ordinance 1996 Judiciary Act 1903 (Cth) s 39B PHOSPHATE RESOURCES LIMITED (ABN 77 009 396 543) v THE COMMONWEALTH OF AUSTRALIA, WILLIAM LEONARD TAYLOR AS ADMINISTRATOR OF THE TERRITORY OF CHRISTMAS ISLAND W333 OF 2001 FRENCH J 13 MAY 2003 MELBOURNE (HEARD IN PERTH) IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W333 OF 2001 BETWEEN: PHOSPHATE RESOURCES LIMITED (ABN 77 009 396 543) APPLICANT AND: THE COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT WILLIAM LEONARD TAYLOR AS ADMINISTRATOR OF THE TERRITORY OF CHRISTMAS ISLAND SECOND RESPONDENT JUDGE: FRENCH J DATE OF ORDER: 13 MAY 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The substituted application is dismissed in respect of paragraphs 1 to 4 of the claims for relief. 2. The applicant's motion for discovery is dismissed. 3. The applicant is to pay the respondents' costs of the motion for discovery. 4. The costs are otherwise reserved. 5. The application is listed for directions on 3 June 2003 at 9am. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W333 OF 2001 BETWEEN: PHOSPHATE RESOURCES LIMITED (ABN 77 009 396 543) APPLICANT AND: THE COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT WILLIAM LEONARD TAYLOR AS ADMINISTRATOR OF THE TERRITORY OF CHRISTMAS ISLAND SECOND RESPONDENT JUDGE: FRENCH J DATE: 13 MAY 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT Introduction 1 One of the statutory responsibilities of the Administrator of the Christmas Island Territory is the supply of various utilities and services on the Island including water, gas and electricity. The Administrator is also required to determine the fees to be charged to the users of those utilities and services. In 1999, it was a requirement of the Utilities and Services Ordinance 1996 that the fees imposed bore a reasonable relationship to the cost of supply of the utilities and services to persons liable to pay the fee and, alternatively, that the fees were less than the cost of supply. 2 Phosphate Resources Limited ("Phosphate"), which operates a mine on Christmas Island, says that electricity charges raised against it for 1999 and 2000 do not meet either of these alternative requirements. It claims a declaration that the determination of the fees, upon which the charges to it were based, was invalid. As an interlocutory measure it has sought extensive discovery going to the costs of supplying electricity in the Territory. The question whether such discovery should be ordered depends ultimately upon the construction of the Ordinance. In particular it depends upon whether it is necessary in deciding upon the validity of the determination, to know what were the actual costs of supply to the relevant users in the period for which charges based upon that determination were raised. 3 For the reasons which follow I have concluded that it is not necessary to ascertain the actual costs of supply of utilities or services to specific users. Declaratory relief directed to throw-up that question should be refused as should the discovery order which has been sought. Factual and Procedural History 4 Phosphate is a company incorporated in Western Australia which operates a mine site on Christmas Island. It is supplied with electricity for that purpose by the Christmas Island Power Authority ("the Authority") which is responsible for the generation, distribution and regulation of the supply of electricity in the Territory. The Authority is part of the administration of the Territory. The statutory responsibility for the supply of electricity and the fixing of charges to users is vested in the Administrator of the Territory pursuant to ss 3 and 4 of the Utilities and Services Ordinance 1996. 5 Pursuant to s 4 of the Ordinance the Administrator made a determination for the supply of electricity which was published in the Government Gazette of the Territory on 22 September 1999. On 27 July 2001, Phosphate filed an application in this Court naming the Commonwealth and the Administrator as respondents. The application was made pursuant to s 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth). Phosphate sought a declaration that the determination of 22 September 1999 was invalid and an order that mandamus issue to the Administrator requiring him to determine a fee in accordance with s 4 of the Ordinance. 6 A substituted application filed on 10 October 2002 seeks a variety of declarations relating to the proper construction of the Ordinance. At the heart of the application is the contention that the Ordinance, as it stood when the determination was made, required, as a condition of validity of the determination, that the fee charged had a "reasonable relationship" to the cost of supplying electricity to a person liable to pay the fee. The fee charged to Phosphate was said not to bear the requisite relationship to the cost of supply. In particular it is said that the fees charged were based upon the fees for electricity supplied by a regional power system under the Electricity Corporation (Charges) By-Laws 1996 (WA). 7 The application and the statement of claim were the subjects of a strike out motion which was dismissed on 20 September 2001. Orders were made at that time for discovery by agreed categories. An amended application and amended statement of claim were filed, by consent on the following day. A defence was filed on 28 September. Directions were given on 3 December giving leave to further amend the application and the statement of claim. The matter was listed for trial from 8-11 April 2002. However, on 26 March 2002, because of an ongoing dispute as to the scope of discovery, the trial dates were vacated by consent by Lee J and further orders made in relation to discovery. Directions were given on 17 June 2002 for a conference of experts to try to resolve the discovery dispute. The dispute arose out of the applicant's contention that it was entitled to the discovery of documents relating to the cost of supplying electricity to persons in the Christmas Island Territory. On 16 July 2002, the respondents were required to give a summary of the categories of costs incurred in the operation of the Christmas Island power station between 1998 and 2000 inclusive and the total cost in each category. A summary was filed on 2 August 2002. On 21 August 2002, a consent order was made that the applicant's file and serve any request for the documents in each category stating their nature. A request was filed on 3 September 2002. 8 On 1 October 2002, an order was made requiring the applicant to formulate either a preliminary question or a claim for declaratory relief that might enable issues affecting the scope of discovery to be resolved. On 8 October 2002, orders were made including an order that: "The question whether the claims for the declarations sought in paragraphs 1 to 4 of the Substituted Application should be heard and determined separately and, if so, whether such relief should be granted be set down for hearing on 16 December 2002 at 10.15am." A direction was also given that the applicant file its motion for discovery in terms of the request filed on 3 September 2002 and that the motion be made returnable on 16 December 2002. The parties were required to file an agreed statement of facts. 9 A minute of a proposed preliminary question for determination was filed by the respondents in the following terms: "What is the proper method or formula to be used to calculate 'the cost of supplying a utility or service to a person liable to pay' within the meaning of section 4(2)(d) of the Utilities and Services Ordinance 1996 (CI)." 10 The applicant seeks to resolve the issues relevant to the scope of discovery which it seeks by seeking declarations in terms of declarations 1 to 4 in its substituted application. If successful, it seeks orders for discovery in terms of its notice of motion. The First Four Declarations Sought by the Applicant 11 The first four declarations sought by the applicant in its substituted application are: "1. A declaration against the First and Second Respondents that, for the purposes of section 4(2)(b) of the Utilities and Services Ordinance 1996 (Cl) (Ordinance), "the cost of supplying a utility or service to a person liable to pay" the fee imposed by section 4(1) of the Ordinance (Fee), means costs: (a) incurred by the Second Respondent in making provision for the supply and use of a utility or service; and (b) which would not be incurred unless the utility or service was supplied to the particular person liable to pay the Fee, or which otherwise relate to the supply of the utility or service to that person. 2. A declaration against the First and Second Respondents that, for the purposes of section 4(2)(b) of the Ordinance, "the cost of supplying a utility or service to a person liable to pay" the Fee does not include costs incurred by the Second Respondent in making provision for the supply and use of a utility or service which: (a) relate to the supply of the utility or service to a person who is not liable to pay the Fee; or (b) do not relate to the supply of the utility or service to any particular person. 3. A declaration against the First and Second Respondents that, for the purposes of section 4(2)(b) of the Ordinance where the Fee is not less than the cost of supplying the utility or service to a person liable to pay the Fee, a "reasonable relationship" between the Fee and the cost of supplying a utility or service to a person liable to pay the Fee, will depend upon the extent to which the Fee is to recover the costs incurred by the Second Respondent: (a) in supplying a utility or service to a particular person liable to pay the Fee or which otherwise relate to the supply of the utility or service to that person; and (b) which do not relate to the supply of the utility or service to any particular person, but which may be reasonably allocated to the particular person liable to pay the Fee. 4. A declaration against the First and Second Respondents that, for the purposes of section 4(2)(b) of the Ordinance, where the Fee is not less than the cost of supplying the utility or service to the person liable to pay the Fee, there will not be a "reasonable relationship" between the Fee and the cost of supplying a utility or service to a person liable to pay the Fee, if the Fee also recovers costs incurred in supplying a utility or service to a person who is not liable to pay the Fee or which otherwise relate to the supply of the utility or service to such a person." The Discovery Sought by the Applicant 12 The scope of the discovery sought by the applicant appears from the orders sought in its motion of 10 October 2002: "(i) Any contract pursuant to which fuel was supplied for the purposes of generating electricity at the Christmas Island Power Station (Power Station) during the period between 22 September 1999 and 3 August 2001; (ii) Copies of all receipts for fuel supplied for the purposes of generating electricity at the Power Station during the period between 22 September 1999 and 3 August 2001; (iii) A pay-roll list for each month of all persons employed at the Power Station during the period between 22 September 1999 and 3 August 2001; (iv) A duty statement, job description form or like document for each person employed at the Power Station during the period between 22 September 1999 and 3 August 2001; (v) An asset register, depreciation schedule or other like document recording the depreciation for each asset used in the Power Station during the period between 22 September 1999 and 3 August 2001; (vi) All documents, including but not limited to technical plans, drawings, specifications, manuals and operating procedures, relating to: (a) the design and capacity of the Power Station; (b) the design and capacity of the electricity transmission and distribution network on Christmas Island; to the extent that such documents are necessary for a qualified electrical engineer to understand the operations of the Power Station and the distribution of power from the Power Station during the period between 22 September 1999 and 3 August 2001. (vii) In relation to the period between 22 September 1999 and 3 August 2001, such documents as are necessary to show, or to allow a qualified electrical engineer to determine: (a) the total number of electricity users on Christmas Island; (b) the Applicant's maximum demand for power from the Power Station in the shortest intervals for which such information is available (eg on a 15 minute cycle); (c) the maximum demand for power from the Power Station by each of the other electricity users, in the shortest intervals for which such information is available." Statutory Framework – The Utilities and Services Ordinance 1996 13 The Utilities and Services Ordinance 1996 confers upon the Administrator responsibility for the supply of utilities and services. Section 3 of the Ordinance provides: "The Administrator may make provision for the supply and use of any of the following utilities and services: (a) water; (b) electricity; (c) gas; (d) drainage and sewerage; (e) refuse removal; (f) public transport; (g) community health care; (h) education; (i) community housing; (j) marine traffic facilities; (k) marine harbour facilities; (l) airport facilities." At the relevant time s 4, which provides for the imposition of fees, was in the following terms: "4(1) There is imposed on a person a fee in relation to: (a) the provision, by the Administrator, of a utility to the person; or (b) the use, by the person, of a service provided by the Administrator; being the fee determined by the Administrator, from time to time, to be the fee applicable to the utility or service. (2) A determination is of no effect in relation to any particular fee unless: (a) notice of the fee is published in the Gazette; and (b) the fee bears a reasonable relationship to the cost of supplying the utility or service to a person liable to pay the fee, or is less than the cost of supplying the utility or service to the person. (3) A determination may, in relation to a utility or service that is supplied in different localities or in different circumstances, fix different fees. (4) The amount of a fee is a debt due to the Commonwealth. (5) A notice under subsection 4(2) must specify a date, not being a date earlier than the date of publication of the notice, as the date on which the fee commences to apply, and may: (a) specify the manner in which a fee is to be paid; and (b) specify a date or period before the end of which a fee must be paid." 14 The Utilities and Services Ordinance 1996 was amended by the Utilities and Services Amendment Ordinance 2001 (No 1) which substituted for the existing s 4(1) and (2) a new s 4(1), (2) and (2A) which reads as follows: "4(1) There is imposed on a person a fee in relation to: (a) the provision, by the Administrator, of a utility to the person; or (b) the use, by the person, of a service provided by the Administrator. (2) The fee is: (a) the fee that is: (i) determined by the Administrator, from time to time, to be the fee applicable to the utility or service; and (ii) notified in the Gazette; or (b) if no determination is made under subparagraph (a)(i) in respect of the utility or service, the fee or charge (if any) that is: (i) applicable to the utility or service under an applied law; and (ii) notified in the Gazette. (2A) A determination must specify the date on which the fee commences to apply, and may specify: (a) the manner in which the fee is to be paid; and (b) a date or period before the end of which the fee must be paid." The constructional question that has arisen in this case could not arise under the Ordinance as it now stands. The Electricity Fees Determination No 1 of 1999 15 The relevant determination is the Electricity Fees Determination No 1 of 1999 as published in the Government Gazette of the Territory of Christmas Island on 22 September 1999. Clauses 1 and 2 deal with the citation and commencement of the determination. Clause 3 provides: "3(1) The fees for the connection of electricity supply, the supply of electricity and ancillary purposes are set out in the Schedule." Clause 3(2) contains definitions, none of which is relevant for present purposes. Clauses 4 to 6 inclusive deal with eligibility for particular tariffs which are not material. Clause 7 fixes the period for payment of the fees and clause 8 the consequences of non-payment. Clause 9 is concerned with rebates and reduced fees. 16 Item 1 of the Schedule to the Determination concerns fees for connection and disconnection of electricity supplied and Item 2 relates to meter testing fees. Item 3 sets out fees for the supply of electricity. It is an agreed fact that the particular fee in the Determination which applied to Phosphate was that contained in Item 3.1 of the Schedule. That was the tariff for General Supply (commercial) (Low /Medium voltage - L2). It was expressed thus in the Determination: "3.1 The tariff for General Supply (commercial)( Low/Medium voltage – L2) is: A fixed charge at the rate of 24.31 cents per day Metered consumption at the rate of 15.98 cents per unit for the first 822 units per day 20 cents per unit per day for units exceeding 822." This tariff imposed fees identical to those charged under the Tariff for Regional Power Systems designated Tariff L2 and entitled "General Supply Low/Medium Voltage" applicable in Western Australia in 1999. The fees chargeable for regional power systems in Western Australia were set out in the Electricity Corporation (Charges) By-Laws 1996 made pursuant to the Energy Corporations (Powers) Act 1979 (WA) and amended by the Electricity Corporation (Charges) Amendment By-Laws (No 2) 1998. Supply and Charges Incurred 17 It is agreed between the parties that Phosphate was supplied with electricity by the Administrator between 11 October 1999 and 11 February 2000. As appears from admissions in the pleadings, Phosphate received accounts for electricity supplied in the period which amounted to $447,031.20. Of this sum it paid $333,733.90 in satisfaction of the amount claimed. Proceedings have been commenced in the District Court in the name of the Commonwealth to recover the difference, being the amount of $113,297.30 together with interest. The fee applicable to Phosphate under the 1999 Determination was 24.1 cents per day plus 15.98 cents per unit for the first 822-kilowatt hours and 20 cents per unit thereafter. 18 It is an agreed fact that between 1 July 1999 and 30 June 2000 the Authority: (a) incurred total expenses of $5,156,624; (b) generated 20,127,620 units of electricity (each unit being 1 kilowatt/hour) It follows and is agreed on that basis that the average cost of each unit generated by the Authority in this period was $0.2562. This represented the total expenses divided by the number of units generated. The average cost per unit of electricity generated by the Authority over that period being $0.2562 exceeded the fee applicable to Phosphate if Phosphate used more than 2.5218 units per day. Phosphate, it was said, used more than that number of units of electricity per day on each day between 1 July 1999 and 30 June 2000. The average cost of each unit was therefore less than the fee charged to Phosphate in the relevant period. The Applicant's Contentions 19 The constructional questions thrown up by the applicant's submissions may be summarised thus: 1. Whether the "costs of supplying the utility or service to a person" referred to in s4(2)(b) of the Ordinance refers to the actual cost of supplying a utility or service to the particular person charged and excludes the costs of supplying to other users and general overheads. 2. Whether the "reasonable relationship" to costs referred to in s 4(2)(b) requires that the fee charged for the utility or service be based upon the actual cost of its supply to that person plus a reasonable proportion of the general overhead costs of supplying the electricity excluding any element of the costs of supply to another person. Counsel for Phosphate submitted that the fee charged to a user may recover all direct and indirect costs fairly attributable to supplying that particular user but may not recover any costs fairly attributable to supplying another user. The Construction of the Utilities and Services Ordinance 20 The Ordinance, as a statutory instrument, is to be construed according to the established rules of statutory interpretation. These take as their starting point the meaning of the words of the Ordinance read in context. Where more than one construction is open that which advances the legislative purpose is to be preferred. 21 As appears from s 3 the Ordinance is concerned with the supply and use of a wide variety of utilities and services. It is necessary in considering the fee setting provision, s 4, to bear in mind that it provides for the imposition of fees right across that range of utilities and services. The supply of water, gas and electricity to consumers can be measured relatively easily by reference to units of volume and energy respectively. The supply of other services referred to in s 3 may not so readily be calculated. The alternative criteria which appear in s 4(2)(b) must therefore be capable of application to the variety of utilities and services contemplated in s 3. To the extent that their language allows they should be construed to permit flexibility of application in a multi-factorial or polycentric and, in my opinion, largely non-justiciable administrative decision making process. 22 Whenever the Administrator provides a utility or service to a person there is imposed upon the person by s 4(1) a liability to pay a fee in relation to that utility or service. The liability is further defined by s 4(4) which makes the "amount of a fee" a debt due and payable to the Commonwealth. The fee imposed is "the fee determined by the Administrator, from time to time, to be the fee applicable to the utility or service". The word "fee" seems to be used in two different senses in s 4. The first refers to the tariff determined by the Administrator. The second refers to the charge actually levied upon a person to whom the relevant utility or service is provided. The conflation of these two ideas imbues s 4 with a degree of conceptual confusion which does not assist in its construction. 23 Section 4(2) sets out conditions of the validity of the Administrator's Determination. The first such condition is publication of a notice of the fee in the gazette – a procedural requirement. The second is that: "the fee bears a reasonable relationship to the cost of supplying the utility or service to a person liable to pay the fee, or is less than the cost of supplying the utility or service to the person." This necessary condition is an expression of two alternative conditions either one of which must be satisfied for the Determination to be effective. Section 4(2) is, in a broad sense, protective of users. It constrains the power of the Administrator in making a fee determination by requiring notice to be given of his or her determination and by setting limits, not expressed with precision, upon the fees which may be fixed. The alternative conditions to s 4(2)(b) are not, as a matter of strict logic, mutually exclusive. But the natural sense of the paragraph and its protective purpose suggest they should be so read. So where a fee is less than the cost of supplying the utility or service that fact is sufficient to satisfy the protective requirement in s 4(2). Where a fee exceeds that cost it must bear "… a reasonable relationship" to it. 24 It is plain from the terms of the Ordinance that the Administrator is not required to make and notify individual fee determinations for individual users. The notice requirement and the necessity to prescribe its date of commencement indicate that the fee determination is prospective and ambulatory. It is a tariff. The determination may fix different fees or tariffs for different localities and different communities. These variations are not in terms required to reflect differences in the cost of supplying different locations or supplying under different circumstances. It may be, for example, that a welfare or like public policy objective would inform a determination for one area that is effectively cross-subsidised by other users. 25 The "cost of supplying the utility or service to a person liable to pay the fee" is a defining element of the constraint upon the tariff fixing function defined by s 4(2)(b). In the context in which it appears, which relates to the fixing of a tariff, this cannot be read as a reference to the cost of supplying the service to each particular user even if that were capable of calculation. The very nature of some of the utilities and services to which s 4(2) applies suggests that such individual calculation is simply not possible without discretionary or evaluative elements of cost allocation. The application of s 4 to services such as public transport, community health care, education and community housing illustrates the point. 26 Let it be assumed, on the other hand, that there is a precise measure of the "cost of supply" applicable to each of the utilities and services referred to in s 3 which, in theory, would allow the actual cost of supply to an individual user to be calculated. The terms of s 4(2)(b) do not require that actual cost to be ascertained. It is sufficient to establish either that the fee charged bears a reasonable relationship to it or that it is less than the cost. The requirement of a reasonable relationship to the cost of supply does not simply define some permissible range of charges above a theoretically ascertainable figure. It is sufficient that the relationship between the fee as determined and the cost of supply is reasonable having regard to the nature of the determination process and the range of cases to which it must apply both between different users and at different times for the same use. The "reasonable relationship" does not impose a requirement to adopt any formula for calculation of the fee provided the outcome can said to be reasonable having regard to the cost. This leaves little scope for challenging the quantum of the determination. The variety of ways in which a fee might be supported as falling into a "reasonable relationship" to the cost of supply reflects the discretionary and polycentric character of the determination process. 27 If a fee were to be set by reference to the average cost of the units of the utility supplied, such a fee would not be open to attack as lacking "a reasonable relationship" to the cost of supplying the relevant utility to a person liable to pay the fee. The importation into such a formula of costs attributable to different classes of users does not rob the resultant fee of the attribute that it bears a reasonable relationship to costs. The fact that, on a fee charged by reference to averaged costs, one user may, in effect, be cross-subsidising others does not place the fee in other than a reasonable relationship to costs. For what is reasonable may encompass a wide range of considerations. At the limits there will be a test of proportionality implied by use of the word "reasonable". That is to say, there may be a fee determined which is so disproportionate to, or so unconnected with, any concept of cost of supply that it can be said to lack the requisite reasonable relationship. 28 In the present case the basis of the Administrator's determination is not known, although it appears that at least, in respect of the fee applicable to Phosphate, the relevant tariff has been taken from that imposed on general users of low to medium voltages in regional power systems in Western Australia. That would not be fatal to validity under s 4(2)(b) of the Ordinance. It may well be the case that sufficient similarities exist between the conditions of supply to users in Christmas Island and in regional Western Australia that this is a proper and rational basis upon which to determine the applicable fee. 29 In the end however it is not necessary, for the purpose of determining whether the conditions imposed by s 4(2)(b) are satisfied, that the Court ascertain the actual basis of the determination of the fees adopted by the Administrator. It is sufficient that they bear a "reasonable relationship" to the cost of supply. It is conceivable that a fee fixed by some random process might in some cases satisfy that condition albeit the determination might be reviewable on other grounds. 30 In this case it is common ground that the fee fixed in relation to Phosphate was less than the average cost to the Authority of providing the electricity used by Phosphate. A fee calculated according to the average cost would have had a reasonable relationship to cost. In my opinion it cannot be said that the fee actually charged to Phosphate, whatever the basis of its calculation, failed to meet the first of the alternative necessary conditions in s 4(2)(b) of the Ordinance. It is not necessary, in reaching that conclusion, to ascertain, on any basis, the actual cost of supply of the relevant utility to the user on whom the fee is imposed. It is sufficient that the fee bears a reasonable relationship to the cost which criterion is met if the fee is less than the average cost of supplying that utility. It follows that I am not prepared to make any of the declarations sought by Phosphate which depend upon constructions of the section inconsistent with that approach. 31 The discovery orders sought all go to ascertaining the actual cost of the supply of electricity to Phosphate. Given my conclusions and the absence of any contention in the defence that the Administrator calculated the fee by reference to the actual cost of supply, there is no issue properly joined in the pleadings which would warrant the orders sought in any event. 32 This does not mean that the application fails in so far as it seeks to challenge the determination on other administrative law grounds. Conclusion 33 For the preceding reasons, I will dismiss the application in relation to the first four claims for declaratory relief and also dismiss the motion for discovery. I certify that the preceding thirty three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 13 May 2003 Counsel for the Applicant: Mr MH Zilko SC and Mr JA Thomson Solicitor for the Applicant: Troika Legal Counsel for the Respondents: Mr AA Jenshel Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 16 December 2002 Date of Judgment: 13 May 2003